[Congressional Record Volume 144, Number 82 (Monday, June 22, 1998)]
[Senate]
[Pages S6762-S6763]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EFFORT TO REMOVE FEC GENERAL COUNSEL
Mr. FEINGOLD. Madam President, I rise to talk about an effort under
way in this Congress to hamstring the agency charged with enforcing the
Federal election laws--the Federal Election Commission. This effort is
happening very quietly under the guise of routine agency
appropriations, but it has deadly serious consequences in terms of the
independence of the Federal Election Commission. I think it is
important to call the Senate's attention to it and give notice that I
intend to do everything in my power to make sure it doesn't happen.
Here is what is happening. The Appropriations Committee of the other
body has included a provision in the funding bill for the FEC that
would result in the firing of the Commission's general counsel and
staff director. That's right, Madam President. The Congress is now
going to get involved in the personnel decisions of the FEC, the agency
that we have charged with overseeing us and the way we conduct our
reelection campaigns. Some in the Congress want to fire two career
civil servants who are simply trying to do their job to make campaign
information available to the public and enforce the election laws.
Lawrence Noble, the General Counsel, has served the agency since
1987. John Surina, the Staff Director, has been in that position since
1983. These are not political appointees. They were put in their jobs
by a bipartisan majority vote of the Commission, as required by law. In
fact, both of these individuals were unanimously approved by the FEC
when they were appointed. They provide crucial institutional
continuity, especially now that, as of last year, we have put a one-
term limit on the Commissioners themselves.
But now, unfortunately, some members of Congress apparently don't
like some things that the Commission has done. And so they are trying
to engineer, what I would call, a quiet coup. They want to require that
these two staff positions be refilled every four years by an
affirmative vote of four Commissioners. And they specify that this
requirement will apply to the current occupants of the positions. So
Mr. Noble and Mr. Surina will lose their jobs at the end of this year,
unless the Commission votes to reappoint them.
Of course, the Commission itself is in great turmoil. Only two
members are serving the terms to which they were appointed. Two members
are holdovers, their terms having expired in April 1995. A fifth member
is also a holdover, although the President has resubmitted his name.
And the sixth slot has been vacant since October 1995. So the Congress
has hardly been blameless if the Commission seems at times to be at
sea. And now here we are about to create two other vacancies, more
turmoil and lack of direction at this crucial agency.
Madam President, specifying by law that top staff positions in the
agency must be refilled every four years is unprecedented. The
Congressional Research Service has told me that there are three
independent agencies--the Equal Employment Opportunity Commission, the
Federal Labor Relations Authority, and the National Labor Relations
Board--where the General Counsel is actually a political appointee,
nominated by the President and confirmed by the Senate. In each of
these cases, the General Counsel has direct statutory authority.
But in every other independent agency, including the FEC--and there
are lots of agencies, Madam President--the FCC, the SEC, the CPSC, the
FTC, the CFTC, and many more. In all of these agencies, the General
Counsel is appointed by either the Chairman or the entire body.
And guess how many of those General Counsels are required to be fired
after four years unless they are reappointed and reconfirmed by the
appointing entity. The answer is none. Not one.
Madam President, I ask unanimous consent that a memorandum from the
Congressional Research Service on this issue be printed in the Record
at this point.
There being no objection, the material was ordered to be printed in
the Record, as follows:
To: Honorable Russell D. Feingold, Attention: Bob Schiff.
From: Rogelio Garcia, Specialist in American National
Government, Government Division.
Subject: Appointments to Positions of General Counsel and of
Staff Director on Independent Regulatory and Other
Collegial Boards and Commissions.\1\
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\1\ See footnotes at end of memorandum.
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This memorandum responds to your request for information
regarding appointments to the position of general counsel and
of staff director, or its equivalent, or independent
regulatory and other collegial boards and commissions.
Specifically, you inquired about the number of such positions
to which the President makes appointments with the advice and
consent of the Senate. You also wanted to know if the
positions included a fixed term of office, and, if they did,
what happened to the incumbent when the term expired.
The position of general counsel at three of 32 independent
regulatory and other collegial boards and commissions is
subject to Senate confirmation. (The position of staff
director, where it exists is not subject to Senate
confirmation in any of the 32 agencies.) The three requiring
Senate confirmation are the Equal Employment Opportunity
Commission (EEOC), Federal Labor Relations Authority (FLRA),
and National Labor Relations Board (NLRB). The general
counsel positions at the three agencies are for fixed terms
of office. At the EEOC, the general counsel is appointed to a
4-year term, and remains in office at the end of the term
until replaced (42 U.S.C. 2000e-4(b)); at the FLRA, the
general counsel is appointed to a 5-year term, and must leave
office when the term expires (5 U.S.C. 7104(f)(1)); and at
the NLRB, the general counsel is appointed to a 4-year term
and must leave office when the term expires (29 U.S.C.
153(d)).
It appears that the above three general counsel positions
were made subject to Senate confirmation because of the
special responsibilities assigned directly to them by
statute. The general counsel for the EEOC is charged directly
with responsibility for the conduct of litigation regarding
the commission's enforcement provisions and civil actions.\2\
The general counsel for the FLRA has direct statutory
authority to investigate alleged unfair labor practices and
file and prosecute complaints, as well as ``direct authority
over, and responsibility for, all employees in the office of
General Counsel, including employees of the General Counsel
in the regional offices . . .'' \3\ Finally, the general
counsel for the NLRB ``exercise[s] general supervision over
all attorneys employed by the Board (other than
administrative law judges and legal assistants to Board
members) and over the officers and employees in the regional
offices, and has final authority, on behalf of the Board, in
respect of the investigation of charges and issuance of
complaints under [29 U.S.C. 160], and in respect of the
prosecution of such complaints before the Board . . .'' \4\
The general counsels at the other 29 agencies, and the
staff director, where the position exists, are appointed
either by the agency's governing board, i.e., the board of
directors, or the chairman, subject to the general policies,
directives, or approval of the governing board. In at least
nine agencies, the governing board appoints the general
counsel, staff director, and other employees.\5\ In at least
five agencies, the chairman, governed by the policies and
directives of the governing body, makes the appointment.\6\
In two agencies, the chairman makes the appointment on
``behalf of the commission.'' \7\ In one agency, the chairman
appoints the general counsel and staff director, as well as
certain other officers, subject to the approval of the
commission.\8\ Finally, in one agency, the chairman makes the
appointment subject to disapproval by a majority vote of the
commissioners.\9\ None of the appointments is for a fixed
term of office. They are all indefinite appointments, and,
with two exceptions, the incumbents may be removed at any
time by the appointing authority.\10\
If I may be of further assistance, please call me at 7-
8687.
footnotes
\1\ The position of general counsel in large independent
agencies, and at the department level as opposed to the
administration or bureau level, in each executive department
is subject to Senate confirmation. None of the positions,
however, is for a fixed term of office.
\2\ 42 U.S.C. 2000e-4(b)(1).
\3\ 5 U.S.C. 7104(f) (2) and (3)
\4\ 29 U.S.C. 153(d).
\5\ Commodity Futures Trading Commission (7 USC 4a (c) and
(d)), Federal Communications Commission
[[Page S6763]]
(47 U.S.C. 154(f)(1)), Federal Election Commission (20 U.S.C.
437c(f)(1)), Federal Mine Safety Health Review Commission (30
U.S.C. 823(b)(2)), Federal Trade Commission (15 U.S.C. 42,
National Mediation Board (45 U.S.C. 154 Third), Railroad
Retirement Board (42 U.S.C. 231f(9), Tennessee Valley
Authority (16 U.S.C. 831b), and Securities and Exchange
Commission (15 U.S.C. 78d(b)).
\6\ Defense Nuclear Facilities Safety Board (42 U.S.C.
286(c)), Farm Credit Administration (12 U.S.C. 2245(b)),
National Transportation Safety Board (49 U.S.C. 1111(e)(1)),
Nuclear Regulatory Commission (42 U.S.C. 5841(a)(2)), and
Surface Transportation Board (49 U.S.C. 701(a)(2)).
\7\ Federal Energy Regulatory Commission (42 U.S.C. 7171(c)),
and Occupational Safety and Health Review Commission (29
U.S.C. 661(e)).
\8\ Consumer Product Safety Commission (15 U.S.C.
2053(g)(1)(A)).
\9\ U.S. International Trade Commission (19 U.S.C.
1331(a)(1)).
\10\ The chairman of the Consumer Product Safety Commission
may remove the general counsel or executive director with the
approval of the commission (15 U.S.C. 2053(g)(1)(B)); and the
chairman of the U.S. International Trade Commission may
remove the general counsel or other high official, subject to
the approval of the governing body (19 U.S.C. 1331(c)(2)(A)).
Mr. FEINGOLD. Madam President, this is a whole new procedure
invented, I have to assume, because some Members of Congress are, in
effect, out to ``get'' Mr. Noble and Mr. Surina.
Oh, and by the way, there is not a single agency where the Staff
Director is a political appointee or has to be reappointed by the
commissioners themselves after a set term. Not one. Frankly, Madam
President, the inclusion of the Staff Director in this provision in the
House Appropriations bill seems to me to be a smokescreen designed to
make this provision seem even-handed. What is really going on here, I
believe, is that some in the Congress are trying to send a message to
Mr. Noble, the General Counsel, and through him, to the Commission.
Some powerful members of Congress don't like some of the cases that Mr.
Noble has recommended bringing. So they want him out.
In recent years, the FEC has undertaken a number of controversial
actions in an attempt to enforce the law that the Congress has written.
Some of these cases have taken on powerful political figures or groups.
The FEC pursued a highly publicized case against GOPAC, a group closely
connected to the Speaker of the House. It has an ongoing action against
the Christian Coalition alleging that that group illegally coordinated
its activities with Republican candidates. And, of course, it has
pursued cases and rulemaking proceedings under a more expansive
definition of what constitutes express advocacy than some in this
Congress believe is appropriate.
All of these actions are objectionable to people on the Republican
side of the aisle. But let's remember that there is a flip side. The
Commission has assessed significant fines against the 1992 Clinton
campaign and the Kentucky Democratic Party. It has pursued litigation
against the National Organization for Women and has pending cases
against the California Democratic Party concerning its use of soft
money, and the advocacy group Public Citizen, alleging that it
coordinated its activities with a primary opponent of the Speaker of
the House.
The bottom line, Madam President, is that the FEC is trying to do its
job, even when we in Congress don't give it adequate resources to do
it. And there is another crucial point about these actions. Each and
every one of the cases or rulemakings I have mentioned was approved by
a majority of the Commission.
Now that is significant, Madam President, because unlike most
agencies, the FEC is evenly balanced with Republican and Democratic
members. It was carefully designed not to allow either party to have
control. So a General Counsel can't just work with one party. In order
to file a case, he must get at least four votes from the Commission,
including at least one from each party. Now that leads to problems
sometimes, because if the Commission deadlocks, a General Counsel
recommendation cannot go forward. But the bottom line is that every
official action of the FEC must be bipartisan.
So what we have here, Madam President, is an effort to intimidate.
The proponents of this firing want to punish the FEC's General Counsel
for bringing forward recommendations to enforce the law. Even though in
all of the cases I have mentioned, a bipartisan majority of the
Commission has agreed with him.
I should mention one other recommendation that Mr. Noble has made
that has not received a majority vote of the Commission, and so is not
going forward yet. Mr. Noble has recommended that the Commission takes
steps to reduce or eliminate certain kinds of soft money contributions.
And we know there are some powerful Members of this body who disagree
with that idea.
You know, it is really fascinating that some of the same people who
are pushing this provision, trying to remove the current General
Counsel say that we don't need to enact campaign finance reform, we
just need to enforce current law. Well, you can't argue that we need to
enforce current law and at the same time be trying to fire the chief
law enforcement officer of the agency. That just doesn't make sense. If
this provision goes through, and Mr. Noble is relieved of his duties at
the end of the year, it may be months before a new General Counsel can
be chosen that will get the bipartisan support that is required. So
right after the 1998 elections, there will be no one to head up the
crucially important enforcement functions of the FEC.
Madam President, we cannot let that happen. We need to let the
professional staff of the FEC do its job. Surely the 3 to 3 party split
on the Commission is enough to make sure that the Commission doesn't go
off on a partisan vendetta. Now we need to stop the partisan vendetta
that this proposal represents.
That is why I intend to offer an amendment when the FEC's
appropriation bill comes to floor to make clear that the Senate does
not want this House proposal to be part of the final bill. And I will
urge the President to veto this bill if it is included. I certainly
hope, Madam President, that those who want to see our election laws
enforced will vote with me when that amendment is offered.
Madam President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CAMPBELL. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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